U.S. v. McDonald

• Decision Date: 31 May 1991
• Docket Number: No. 90-1002,90-1002
• Citation: 933 F.2d 1519
• Parties: 33 Fed. R. Evid. Serv. 282 UNITED STATES of America, Plaintiff-Appellee, v. Larry M. McDONALD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1519

933 F.2d 1519

33 Fed. R. Evid. Serv. 282

UNITED STATES of America, Plaintiff-Appellee, v. Larry M. McDONALD, Defendant-Appellant.

No. 90-1002.

United States Court of Appeals, Tenth Circuit.

May 31, 1991.

John M. Hutchins, Asst. U.S. Atty. (Michael J. Norton, U.S. Atty., David M. Gaouette, Asst. U.S. Atty., with him on the briefs), Denver, Colo., for plaintiff-appellee.

Richard J. Banta (Shelley Gilman of Pozner Hutt Gilman Kaplan, P.C., on the opening brief; Larry W. McDonald, pro se, on the supplemental opening brief), Denver, Colo., for defendant-appellant.

Before MOORE, SETH and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Mr. McDonald (Defendant) appeals his convictions of possession with intent to distribute more than five grams of cocaine base and carrying a firearm during and in relation to a drug trafficking crime. See 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B)(iii); 18 U.S.C. Sec. 924(c)(1).

Defendant assigns error to four matters: (1) the trial court's allowance of expert testimony; (2) the failure to give certain instructions; (3) the trial court's ex parte communication with a juror; and (4) the sufficiency of the evidence relating to the firearm charge. We affirm.

I. Background

Defendant was observed by police officers sitting in his car when two people approached the car and items were then passed between Defendant and the two persons. The police ran a license check and found there existed an outstanding arrest warrant for Defendant. The police then went to Defendant's car, asked Defendant his identity, and after confirming his identity arrested Defendant.

The police then searched the car. This search revealed 6.7 grams of base or rock cocaine found under the armrest; a single-edge razor blade found on a service tray located on the center hump of the automobile; a telephone beeper; and a loaded .357 Ruger pistol found under the driver's seat. A search of Defendant produced $990 in cash and $20 in food stamps.

II. The Expert Testimony

After testimony was introduced relating the basic facts as outlined above, the prosecution called an expert witness. The expert's credentials were substantial. He was one of the supervisors for the Denver Metro Crack Task Force. He possessed a bachelor's and a master's degree and had extensive training concerning cocaine and cocaine trafficking. He was in charge of investigating ninety per cent of the crack investigations performed by the Denver police since crack first was discovered in Denver in 1986.

Counsel for Defendant objected to the testimony, stating:

Basically, as I said, I have no problem with it, if this officer wants to testify from his experience. What he knows about how crack is packaged. Or how it's sold or anything like that. But if this is going to lead to this officer offering an opinion as to what all this means, then I strongly object. That's for the jury to decide.

The trial court instructed the prosecution to proceed, taking one point at a time.

The expert testified as to the significance of the quantity of the cocaine. He testified 6.7 grams was equal to about one quarter ounce; the average street sale dosage would be somewhere between an eight-hundredth of a gram and a tenth of a gram; and the normal dose sells for around $20. He testified the quantity possessed by Defendant was a lot larger than what would normally be considered as a dose.

The expert testified that people buying and selling crack cocaine commonly have single-edge razor blades in their possession in order to cut up the cocaine base into saleable or usable quantities. He testified crack is not sold in packages, but is commonly sold "just as rocks."

The expert testified a great deal of money is involved in the crack business. Amounts of $990 are often encountered on street level dealers. The expert further testified that crack is commonly exchanged for food coupons. The expert testified street dealers frequently arm themselves to protect the merchandise and the money. Finally, the expert testified there is an ever increasing trend in the drug trade toward the use of pagers or beepers. Lookouts and runners utilize this method to communicate with the dealer.

At the conclusion of this testimony, counsel for Defendant again objected, arguing "[i]t's intruding on the province of the jury. What he is basically saying is this man is guilty, not based on anything he observed or anything he knows about this particular case, but simply on suspicion and innuendo," and he requested a mistrial. The trial court denied the motion.

Defendant now characterizes this evidence as a criminal profile and argues it was wrongly used as substantive evidence of guilt.

What is "profile evidence"? Courts define it in varying terms such as an "informal compilation of characteristics often displayed by those trafficking in drugs," United States v. Campbell, 843 F.2d 1089, 1091 n. 3 (8th Cir.1988); "an 'abstract of characteristics found to be typical of persons transporting illegal drugs,' " United States v. Oyekan, 786 F.2d 832, 834 n. 2 (8th Cir.1986) (citation omitted); and "the collective or distilled experience of narcotics officers concerning characteristics repeatedly seen in drug smugglers," Florida v. Royer, 460 U.S. 491, 525 n. 6, 103 S.Ct. 1319, 1339 n. 6, 75 L.Ed.2d 229 (1983) (Rehnquist, J., dissenting). A profile is simply an investigative technique. It is nothing more than a listing of characteristics that in the opinion of law enforcement officers are typical of a person engaged in a specific illegal activity.

The common use of profile evidence is to make investigative stops. Courts have frequently upheld investigative stops based upon profile characteristics. See, e.g., United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); United States v. Nunley, 873 F.2d 182 (8th Cir.1989). The case before us does not involve an investigatory stop, nor does it involve the issue of reasonable suspicion.

Courts have condemned the use of profiles as substantive evidence of guilt. In United States v. Hernandez-Cuartas, 717 F.2d 552, 555 (11th Cir.1983), the government introduced testimony from a customs inspector about the use and meaning of a profile. The court, while not prohibiting the use of a profile, warned against its use as substantive evidence of guilt. The court went on to affirm the conviction as the testimony was admitted purely for background material as to how and why Defendant was stopped and searched. In United States v. Beltran-Rios, 878 F.2d 1208, 1210 (9th Cir.1989), the court criticized the use of profile evidence but affirmed the conviction as the testimony came in response to cross-examination by the defense. In United States v. Quigley, 890 F.2d 1019 (8th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1163, 107 L.Ed.2d 1066 (1990), the court condemned a conviction where profile evidence was used as substantive evidence of guilt; however, the court upheld the conviction as there was substantial other evidence showing guilt.

Rather than focusing our inquiry upon defining and classifying evidence into categories of profile or non-profile, we believe the better approach is to commence our inquiry with an examination of the applicable rules of evidence. Fed.R.Evid. 702 ¹ instructs us to admit specialized knowledge if it will assist the trier of fact in understanding the evidence. Rule 702 thus dictates a common-sense inquiry of whether a juror would be able to understand the evidence without specialized knowledge concerning the subject.

In the case before us the evidence was specialized. ² Defendant possessed 6.7 grams of rock cocaine. A person possessing no knowledge of the drug world would find the importance of this fact impossible to understand. The average juror would not know whether this quantity is a mere trace, or sufficient to pollute 1,000 people.

The next items of evidence can best be described as a drug dealer's tools of trade: a single-edge razor blade, a pager or beeper, and a loaded pistol. Is the possession of these items something the jury can understand without the benefit of specialized knowledge?

We observe the razor blade is at least circumstantial evidence suggesting Defendant possessed the means to cut the rock cocaine and thus intended to distribute. The possession of the remaining tools of the trade, the pager and the loaded pistol, are likewise circumstantial evidence. The proper inquiry concerning expert evidence is simply whether the jury is able to understand the evidence without the specialized knowledge that is available from the testimony of an expert witness.

The $990 cash and $20 in food stamps were the next items of evidence to be considered. Why would someone have such a large quantity of money and food stamps upon his person? Without understanding the drug trade is a cash-and-carry business, and that both cash and food stamps are the medium of exchange in a drug transaction, the basic evidence would leave a juror puzzled. A jury could not understand the significance of this evidence without the particular background knowledge of how a drug dealer works.

These are not subjects with which most jurors are familiar. We find other cases reaching a similar result. In United States v. Hoffman, 832 F.2d 1299, 1310 (1st Cir.1987), expert testimony was allowed concerning the unique language of narcotics dealers. In United States v. Kusek, 844 F.2d 942, 949 (2d Cir.), cert. denied, 488 U.S. 860, 109 S.Ct. 157, 102 L.Ed.2d 128 (1988), the court allowed testimony concerning the use of codes by narcotics dealers. And in United States v. Gomez-Norena, 908 F.2d 497, 501-02 (9th Cir.) cert. denied, --- U.S. ----, 111 S.Ct. 363, 112 L.Ed.2d 326 (1990), the court allowed expert testimony concerning the discovery of a large amount of cocaine and the way it was concealed to be admitted on the issue of the defendant's intent to distribute cocaine. See also United States v. Espinosa, 827 F.2d 604, 611-13 (9th...